PART III – COUNSELLING AND RECONCILIATION

PART IV – THE FAMILY DIVISION OF THE HIGH COURT AND MAGISTRATES’ COURT

15. Family Division of the High Court
16. Chief Judge of the Family Division of the High Court
17. Jurisdiction and powers of the Family Division of the High Court
18. Exercise of jurisdiction
19. Appeals from the Family Division
20. Family Division of the Magistrates’ Court
21. Jurisdiction and powers of the Family Division of the Magistrates’ Court
22. Practice and procedure
23. Officers of the Family Division

PART V – MATRIMONIAL CAUSES

DIVISION I – JURISDICTION

24. Institution of proceedings
25. Law to be applied
26. Principles to be applied by courts
27. Institution of proceedings
28. Staying and transferring proceedings
29. Courts to act in aid of each other

DIVISION 2 – DISSOLUTION AND NULLITY OF MARRIAGE

30. Ground for dissolution
31. Effect of resumption of co-habitation
32. Nullity of marriage
33. Court not to make order of dissolution where before it
34. Conditional order in the first instance
35. When conditional order becomes final
36. Final order where children of the marriage
37. Certificate as to final order
38. Recession of conditional order
39. Re-marriage after dissolution
40. No limit as to time or place of facts and circumstances

PART VI – CHILDREN

DIVISION 1 – INTRODUCTORY

41. Objects of Part
42. Interpretation
43. Application of Part to void marriages
44. Certain children are children of marriages etc.

DIVISION 2 – PARENTAL RESPONSIBILITY

DIVISION 3 – COUNSELLING, ETC.

49. Obligation to consider advising people about counselling for Part VI Orders
50. Request for counselling made through a court
51. Request for counselling made to a family and child counsellor
52. Court counselling facilities to be made available
53. Conferences with family and child counsellors or welfare officers
54. Reports by family and child counsellors and welfare officers
55. Provision of certain documents

DIVISION 4 – PARENTING PLANS

56. Parents encouraged to reach agreement
57. Meaning of “parenting plan” and related terms
58. Parenting plan may not be varied, but may be revoked, by further agreement
59. Registration in a court
60. Child welfare provisions of registered parenting plans
61. Child maintenance provisions of registered parenting plans which are not enforceable as maintenance agreements
62. Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plan

DIVISION 5 – PARENTING ORDERS

63. Meaning of “parenting order” and related terms
64. Parenting orders may be made in favour of parents or other persons

DIVISION 6 – PARENTING ORDERS OTHER THAN CHILD MAINTENANCE ORDERS

Subdivision A – General principles

65. Applying for parenting orders
66. Court’s power to make parenting order
67. General requirements for counselling before parenting order made
68. Order by consent in favour of non-parent
69. Children who have married or entered into relationships making the parenting or maintenance order unreasonable
70. Effect of adoption on parenting order
71. Death of parents with whom child lives
72. Counsellors may be required to supervise or assist
73. General obligations created by parenting orders

Subdivision B – Arrest of offenders

74. Warrant for arrest of alleged offender
75. Arrested person to be brought before a court
76. Obligation of court where application before it to deal with contravention
77. Obligation of court where no application before it, but application before another court, to deal with contravention
78. Obligation of court where no application before any contravention
79. Applications heard as required by section 77

Subdivision C – Obligations under parenting orders relating to taking or sending children from the Fiji Islands

80. Interpretation
81. Obligation if residence order, contact order or care has been made
82. Obligations if proceedings for the making of a residence order, contact order or care order are pending
83. Obligations of owners etc. of aircraft and vessels if residence order, contact order or care order are made
84. Obligations of owners if proceedings are pending
85. General provisions applicable to sections 83 or 84

DIVISION 7- CHILD MAINTENANCE ORDERS

Subdivision A – Principles

Subdivision B – Applying for and making child maintenance orders

88. Who may apply
89. Power of the Court
90. Considering what financial support necessary
91. Matters to be taken into account in determining contribution that made by party etc.
92. Children who are aged 18 or over
93. When step-parents have a duty to maintain
94. Determining financial contribution of step-parent

Subdivision D – When child maintenance orders cease

DIVISION 8 – OTHER MATTERS RELATING TO CHILDREN

Subdivision A – Father liable to contribute towards child bearing expenses if not married to mother

100. Father liable to contribute towards maintenance and expenses of mother
101. Matters to be taken into account
102. Powers of court
103. Urgent orders
104. Institution of proceedings

Subdivision B – Recovery of children

105. Nature of recovery orders
106. Recovery orders authorising or directing people
107. Recovery orders to stop and search etc. vehicles, places, etc.
108. Who may apply for a recovery order
109. Court’s power to make recovery order
110. How long recovery order remains in force
111. Persons not to prevent or hinder taking of action under recovery order
112. Obligation to notify persons of child’s return

Subdivision C – Allegations of child abuse

113. Where party to proceedings makes allegation of child abuse
114. Where member of the court personnel or counsellor suspects child abuse etc.
115. No liability for notification under section 113 or 114.
116. Orders relating to welfare of children
117. Delivery of passport

DIVISION 9 – INJUNCTIONS IN RELATION TO A CHILD

118. Injunctions
119. Powers of arrest

DIVISION 10 – BEST INTERESTS OF CHILDREN AND THE REPRESENTATION OF CHILDREN

Subdivision A – Determining the best interests of a child

120. Proceedings to which subdivision applies
121. How a court determines what is in a child’s best interests
122. Child’s wishes – how expressed
123. Relevant family violence orders
124. Risk of family violence

Subdivision B – Separate representation of children

125. Order for separate representation
126. Child to be made available for examination

DIVISION 11 – PROCEEDINGS AND JURISDICTION

Subdivision A – Institution of proceedings and procedures

127. Institution of proceedings under this Part
128. Institution of maintenance proceedings by authorised authority
129. Child or parent to be present in Fiji Islands etc.
130. Failure to comply no bar to proceedings

Subdivision C – Parentage testing

137. Evidence of parentage
138. Orders for carrying out of parentage testing procedures
139. Orders associated with parentage testing orders
140. Orders directed to persons aged 18 or over
141. Orders directed to children
142. No liability if parent etc. consents
143. Regulations about carrying out, and reporting on, parentage testing procedures
144. Reports of information obtained may be received in evidence
145. Parentage testing for purposes of international maintenance agreements

Subdivision D – Child welfare laws not affected

146. Child welfare laws

DIVISION 12 – OVERSEAS ORDERS

Subdivision A – Registration of overseas orders

147. Interpretation
148. Registration of orders
149. Effect of registration on exercise of jurisdiction
150. Cancellation of registration if residence order, contact order or care order made
151. Relationship between local orders and registered overseas child orders

PART VIII – INTERVENTION

PART IX – APPEALS

181. No appeal after final order
182. Appeals to the Court of Appeal
183. Case stated
184. Appeals from the Family Division of the Magistrates’ Court

PART X – PROCEDURE AND EVIDENCE

185. Procedure
186. Evidence of children
187. Evidence by affidavit
188. Evidence of husbands and wives
189. Protection of witnesses
190. Proof of birth, parentage, death or marriage
191. Restrictions on the medical and psychological examination of children

PART XIII – DECLARATIONS AND INJUNCTIONS

201. Proceedings for declarations
202. Power to grant injunctions
203. Powers of arrest

PART XIV – MISCELLANEOUS

204. Family Law Council
205. Costs
206. Interest on moneys ordered to be paid
207. Frivolous or vexatious proceedings
208. Married persons may sue each other
209. Criminal conversation, adultery, enticement and breach of promise
210. Restriction on publication of court proceedings
211. Powers of entry and search for purpose of arresting persons
212. Rules of the Family Division
213. Regulations may prescribe certain matters
214. Repeal and savings

Schedule – Repealed Acts

—————————

Act No. 18 of 2003

I assent.

J.I. ULUIVUDA
President

[6 November, 2003]

AN ACT

TO ESTABLISH FAMILY DIVISIONS OF THE HIGH COURT AND THE MAGISTRATES’ COURT, TO MAKE FRESH PROVISIONS RELATING TO DISSOLUTION OF MARRIAGE, SPOUSAL AND CHILD SUPPORT, PARENTING RESPONSIBILITY AND SPOUSAL PROPERTY, TO PROVIDE FOR MARRIAGE COUNSELLING AND RECONCILIATION, AND FOR RELATED MATTERS

ENACTED by the Parliament of the Fiji Islands-

PART I – PRELIMINARY

Short title and commencement

1.-(1) This Act may be cited as the Family Law Act 2003.

(2) This Act comes into force on a date or dates appointed by the Attorney General by notice in the Gazette.

(3) The Attorney General may appoint different dates for the coming into operation of different Parts, Divisions or sections of this Act.

Interpretation

2.-(1) In this Act, unless the contrary intention appears-

“adopted”, in relation to a child, means adopted under the law of any place (whether in or out of the Fiji Islands) relating to the adoption of children;

“appeal” includes an application for a re-hearing;

“applicant” includes a cross-applicant and, in relation to proceedings for dissolution of marriage instituted before the commencement of this Act, includes a petitioner or cross-petitioner.

“approved”, in relation to a marriage education and counselling organisation, means approved by the Attorney-General under section 6;

“child” means a person who is under the age of 18 years;

“child counselling” means counselling to-

(a) discuss the care, welfare or development of a child; or

(b) discuss, and try to resolve, differences between persons that affect the care, welfare or development of a child;

“child maintenance order” has the meaning given by section 63(5);

“contact order” has the meaning given by section 63(4);

“court”, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act;

“court counsellor” means a Director of Counselling and any other court counsellor appointed under section 23;

“Director of Counselling” means a person appointed as such under section 23;

“family and child counselling” means any of the following kinds of counselling-

(a) marriage counselling;

(b) child counselling;

(c) counselling about any matter that arises out of proceedings under this Act and that involves-

(i) a parent of a child;

(ii) a child; or

(iii) a party to a marriage;

“family and child counsellor” means-

(a) a court counsellor;

(b) a person authorised by an approved counselling organisation to offer family and child counselling on behalf of the organisation; or

(c) a person authorised under the regulations to offer family and child counselling;

“Family Division” means the Family Division of the High Court established by section 15 or the Family Division of the Magistrates’ Court established by section 20, as the case may be;

“Family Law Council” means the body of that name established under section 204;

“financial matters”, in relation to the parties to a marriage, means matters with respect to-

(a) the maintenance of one of the parties;

(b) the property of those parties or of either of them; or

(c) the maintenance of children of the marriage;

“financial or Part VII proceedings”, means-

(a) proceedings (being, unless the context otherwise requires, proceedings under this Act) of a kind referred to in any of paragraphs (c) to (h) of the definition of “matrimonial cause” in this subsection; or

(b) proceedings under Part VII;

“made”, in relation to an order which is a judgment means given, and “make” has a corresponding meaning;

“maintenance agreement” means an agreement in writing which is made, either before or after the commencement of this Act, between the parties to a marriage and which makes provision with respect to financial matters, whether or not-

(a) there are other parties to the agreement;

(b) it also makes provision with respect to other matters,

and includes such an agreement that varies an earlier maintenance agreement;

“marriage counselling” includes the counselling of a person in relation to-

(a) entering into marriage;

(b) reconciliation of the parties to a marriage;

(c) separation of the parties to a marriage;

(d) the dissolution or annulment of a marriage; or

(e) adjusting to the dissolution or annulment of a marriage, whether-

(i) the counselling is provided in relation to the proposed marriage, marriage or former marriage of the person or in relation to the proposed marriage, marriage or former marriage of another person or other persons; and

(ii) the counselling is provided to the person individually or as a member of a group of persons;

“matrimonial cause” means-

(a) proceedings between the parties to a marriage, or by the parties to a marriage, for an order of-

(i) dissolution of marriage; or

(ii) nullity of marriage;

(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by order or otherwise;

(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage;

(d) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings-

(i) arising out of the marital relationship;

(ii) in relation to concurrent, pending or complete proceedings between those parties for principal relief; or

(iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in the Fiji Islands under Part XI;

(e) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement;

(f) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship;

(g) proceedings between-

(i) the parties to a marriage;

(ii) if one of the parties to a marriage has died – the other party to the marriage and the legal personal representative of the deceased party to the marriage, being proceedings-

(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 172 and the approval of which has not been revoked;

(iv) in relation to a maintenance agreement the approval of which under section 172 has been revoked; or

(v) with respect to the enforcement under this Act of a maintenance agreement that is registered in a court under section 171 or an overseas maintenance agreement that is registered in a court under regulations made under section 174;

(h) proceedings with respect to the enforcement of an order made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or

(i) any other proceedings (including proceedings with respect to the enforcement of an order or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (h), including proceedings of such a kind pending at, or completed before, the commencement of this Act;

“order” means an order, decree or judgement and includes an order nisi and an order dismissing an application or refusing to make an order;

“ordinarily resident” includes habitually resident;

“overseas jurisdiction” means the jurisdiction of a country or part of a country outside the Fiji Islands;

“overseas maintenance agreement” means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction by reason of the registration of the agreement, or the taking of any other action in relation to the agreement, under the law of that country and includes such an agreement with respect to the maintenance of an ex-nuptial child as if the child were a child of the marriage of the parties to the agreement;

“parenting order” has the meaning given by section 63(1);

“parenting plan” has the meaning given by section 57;

“Part VII proceedings” means proceedings under Part VII with respect to spousal maintenance or the property of the parties to the marriage;

“prescribed overseas jurisdiction” means a jurisdiction in any country or part of a country outside the Fiji Islands which is prescribed by the regulations as an overseas jurisdiction for the purposes of the provision in which the expression is used;

“proceedings” means proceedings in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding;

“proceedings for principal relief” means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause”;

“property”, in relation to the parties to a marriage or either of them, means property within or outside the to which those parties are, or that party is, entitled, whether in possession or reversion;

“registrar” includes a deputy registrar;

“regulation” means regulations made under section 213;

“repealed Act” means any of the Acts set out in the Schedule;

“residence order” has the meaning given by section 63(3);

“separation order” means an order, not being an order of dissolution of nullity of marriage or for a judicial separation, having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage;

“specific issues order” has the meaning given by section 63(6);

“welfare officer” means any of the following-

(a) a person who is permanently or temporarily employed as a welfare officer in the public service;

(b) a person nominated by an organisation concerned with the welfare of children, being an organisation that has been approved under section 6;

(c) a person appointed as a welfare officer in accordance with the regulations.

(2) A reference in this Act to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled in the Fiji Islands or elsewhere.

(3) A reference in this Act to a parent of a person includes an adoptive parent, if the personal law of the person permits adoption.

(4) In ascertaining the domicile of a party to a marriage for the purposes of this Act –

(a) a person’s domicile at anytime (whether before or after the commencement of this Act) in any country, however acquired, is deemed to have continued, or to continue, until the acquisition by that person of a domicile of choice in another country;

(b) the domicile of a woman who is, or has at any time been, married must be determined as if she had never been married; or

(c) a person who has attained the age of 18 years, or a person who has not attained that age but is, or has at any time been, married, has, and is deemed to have had at all times since that person attained that age or became married, the capacity to acquire a domicile of choice.

Institution of proceedings

3.-(1) After the commencement of this Act-

(a) proceedings by way of a matrimonial cause cannot be instituted except under this Act; and

(b) proceedings by way of a matrimonial cause instituted before the commencement of this Act cannot be continued except in accordance with section 4.

(2) Proceedings for an order of restitution of conjugal rights, of jactitation of marriage or of judicial separation cannot be instituted or continued after the commencement of this Act.

(3) Proceedings for a separation order cannot be instituted after the commencement of this Act.

Pending proceedings

4.-(1) Subject to subsection (2), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and must be dealt with as if this Act had not been passed.

(2) Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of this Act, pending proceedings for a decree of dissolution of marriage must, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 30(1) and, in relation to proceedings in which such a request is made, section 30(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of Part V of this Act.

(3) Where subsection (2) does not apply but the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of making of the request under this subsection, pending proceedings for a decree of dissolution of marriage must, if either party so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 30(1) and, in relation to proceedings in which such a request is made, section 30(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of making of the request.

(4) Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void, or pending proceedings of a kind referred to in paragraph (b) of the definition of “matrimonial cause” in section 2(1), may be continued and must be dealt with as if they were proceedings instituted under this Act.

(5) Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, instituted under a repealed Act may be continued and must be dealt with as if they were proceedings instituted under this Act.

(6) Section 214(2) does not apply to proceedings continued and dealt with under this section.

(7) Where, in any proceedings constituting a matrimonial cause, an order has been made before the commencement of the relevant Part of this Act-

(a) any appeal in respect of that order may be continued or instituted;

(b) any new trial or re-hearing ordered upon the hearing of such an appeal, or upon an appeal heard before the commencement of the Part, may be heard and completed; and

(c) any order maybe made upon any such appeal, new trial or re-hearing, and, if an order so made is a conditional order, the order may become final,

as if this Act had not been passed.

(8) Where, in any proceedings constituting a matrimonial cause, a conditional order was made before the commencement of the relevant Part of this Act but did not become final before that date, the order becomes final upon-

(a) the expiration of 1 month from the date of making of the order;

(b) the expiration of 1 month from the date of making of a relevant order under section 58 (1) of the Matrimonial Causes Act or section 34 of this Act; or

(c) the date of commencement of the relevant Part of this Act,

whichever is the latest.

(9) At the commencement of this Act, any proceedings pending under the written laws (including practice and procedures) repealed under section 214, continue and are to be determined under those repealed written laws (including practice and procedures), as if such laws were still in force.

(10) In this section –

“appeal” includes-

(a) an application for leave to appeal;

(b) an application for a new trial or for a re-hearing; and

(c) an intervention;

“pending proceedings” means proceedings that were instituted before the date of commencement of the relevant Part of this Act but not completed before that date.

Restriction on parenting orders

5.-(1) Subject to subsection (3), a court must not make a parenting order under Part VI in relation to a child who is a ward of the Department responsible for Social Welfare or who is under the care and control of the Minister responsible for Social Welfare in his or her capacity as a Minister.

(2) Nothing in this Act, and no order under this Act, affects-

(a) the jurisdiction of a court, or the power of an authority, under the law to make an order, or take any other action, whereby a child becomes a ward of the State, or is placed under the care and control of the Minister responsible for Social Welfare, or any similar jurisdiction or power;

(b) any such order made, or action taken, or the operation, in respect of a child in relation to whom any such order has been made or action taken, of the law under which the order was made or action taken;

(c) the jurisdiction of a court to make an order in respect of the maintenance of a child referred to in subsection (1) in favour of an officer or authority of the State performing functions in relation to the welfare of children; or

(d) an order of a kind referred to in paragraph (c) made by a court.

(3) A judge or magistrate of the Family Division may make an order referred to in subsection (1) if the judge or magistrate is satisfied that there are special circumstances that justify the making of the order.

PART II – MARRIAGE EDUCATION AND COUNSELLING ORGANIZATIONS

Approval of organizations

6.-(1) A person or organization may apply to the Family Law Council for approval under this Part as-

(a) a marriage education and counselling organization; or

(b) an organisation concerned with the welfare of children.

(2) The Family Law Council, in consultation with the Attorney-General, may approve any such person or organisation if it is satisfied that-

(a) the person or organisation is willing and able to engage in marriage education and counselling or is concerned with the welfare of children, as the case may be; and

(b) marriage education and counselling or the welfare of children, as the case may be, constitutes or will constitute the whole or the major part of its activities.

(3) The approval of a person or organisation under this section may be given subject to any conditions the Family Law Council determines.

(4) If the approval of a person or organisation has been given subject to conditions, the Family Law Council may, from time to time, revoke or vary all or any of those conditions or add further conditions.

(5) The Family Law Council may, at any time, in consultation with the Attorney-General, revoke the approval of an organization if –

(a) the person organisation has not complied with a condition of the approval of the person or organisation;

(b) the person or organization has not furnished, in accordance with section 8, a statement or report that the organization is required by that section to furnish; or

(c) The Family Law Council is satisfied that the person or organisation is not adequately carrying out marriage education and counselling or being concerned in the welfare of children.

(6) Notice of the approval of a person or an organization under this section, and of the revocation of any such approval, must be published in the Gazette.

Financial assistance

7. The Attorney-General may, from time to time, in consultation with the Family Law Council, out of moneys appropriated by Parliament for the purposes of this Part, grant to a person or organisation approved as a marriage education and counselling or approved as an organization concerned with the welfare of children, upon such conditions as he or she thinks fit, such sums by way of financial assistance as he or she determines.

Annual reports

8.-(1) An approved marriage education and counselling organization or an organization concerned with the welfare of children must, not later than 31st March in each year or other period as may be extended by the Attorney-General in consultation with the Family Law Council, furnish to the Family Law Council and a copy to the Attorney-General, in respect of the year ending 31st December of the previous year-

(a) An audited financial statement of the receipts and payments of the organisation, with those for its functions under this Act shown separately from other receipts and payments; and

(b) A report on its marriage education and counselling activities or child welfare activities, including information as to the number of cases dealt with by the person or organisation during the year.

(2) If, upon application by a person or an organisation, the Attorney-General is satisfied that it would be impracticable for the person or organization to comply with the requirements of subsection (1) or that the application of those requirements to the person or organization would be unduly onerous, he or she may, in writing, exempt the person or organization, wholly or in part, from those requirements.

(3) The Family Law Council must submit a copy of the annual report to the Chief Registrar of the High Court to be included in the annual report of the Judicial Department.

PART III – COUNSELLING AND RECONCILIATION

Possibility of reconciliation

9.-(1) Where proceedings for a dissolution of marriage have been instituted, or Part V or Part VI proceedings have been instituted by a party to a subsisting marriage, it is the duty of the judge or magistrate constituting the court, and of every legal practitioner representing a party, to give consideration, from time to time, to the possibility of a reconciliation of the parties.

(2) If, in such proceedings, it appears at any time to the judge or magistrate, from the evidence in the proceedings or the attitude of the parties, or of either of them, that there is a reasonable possibility of such a reconciliation, the judge or magistrate may-

(a) adjourn the proceedings to afford the parties an opportunity to consider a reconciliation;

(b) with the consent of these parties, interview them in chambers, with or without counsel, as the judge or magistrate thinks proper, with a view to effecting a reconciliation; and

(c) if the judge or magistrate thinks it desirable to do so, nominate-

(i) a marriage counsellor or an approved marriage education and counselling organisation; or

(ii) in special circumstances, some other suitable person or organisation, to assist those parties is considered a reconciliation.

(3) If, after an adjournment under subsection (2) has taken place, either of the parties requests that the hearing be proceeded with, the judge or magistrate must resume the hearing as soon as practicable.

(4) If the court makes an order or grants an injunction under section 202, the court must, if it is of the opinion that it is in the interests of the parties or of the children of the marriage to do so, advise either or both of the parties to attend a marriage counsellor.

(5) Where a court having jurisdiction under this Act is of the opinion that counselling may assist the parties to a marriage to improve their relationship to each other and to any child of the marriage, it may advise the parties to attend upon a marriage counsellor or an approved marriage education and counselling organization and, if it thinks it desirable to do so, may adjourn any proceedings before it to enable the attendance.

Notice to seek assistance

10.-(1) A party to a marriage may file in either Family Division a notice stating that he or she intends to seek the assistance of the counselling facilities of the Family Division.

(2) If such a notice is filed, the Director of Counselling of the relevant Division must arrange for the parties to the marriage to be interviewed by a marriage counsellor for the purpose of assisting the parties with a view to a reconciliation or the improvement of their relationship to each other and to the children of the marriage.

Availability of counselling services

11.-(1) A Director of Counselling must advertise the existence and availability of the counselling and welfare facilities of the respective Family Division.

(2) A party to a marriage must seek the assistance of the counselling facilities of either Family Division and when such assistance is sought the Director of Counselling must, as far as practicable, make those facilities available.

Rules of each Family Division

12. The rules of each Family Division must provide for furnishing to persons proposing to institute proceedings under this Act, and in appropriate cases to their spouses, documents setting out-

(a) the legal and possible social effects of the proposed proceedings (including the consequences for the children of the marriage); and

(b) the counselling and welfare facilities available within the respective Family Division and elsewhere.

Privileged communications

13.-(1) This section applies to-

(a) a marriage counsellor;

(b) a person nominated, or acting on behalf of an organisation nominated, in accordance with section 9(2)(c); or

(c) a person to whom a party to a marriage has been referred by a marriage counsellor, or by a person referred to in paragraph (b), for medical or other professional consultation.

(2) Evidence of anything said or of any admission made at a conference with a person to whom this section applies, acting in the capacity referred to in subsection (1), is not admissible in any court or in proceedings before a person authorized by law, or by the consent of the parties, to hear evidence.

Oath of secrecy

14. A marriage counsellor must, before first performing the functions of a counsellor, make before a person authorized under the law of the Fiji Islands to take affidavits an oath or affirmation of secrecy in the prescribed form.

PART IV – THE FAMILY DIVISION OF THE HIGH COURT AND MAGISTRATES’ COURT

Family Division of the High Court

15.-(1) This section establishes a Family Division of the High Court.

(2) The Division consists of such judges as the Chief Justice determines.

Chief Judge of the Family Division of the High Court

16.-(1) The Chief Justice may, in writing, designate a judge as the judge or to act as a judge of the Division.

(2) Subject to section 134 of the Constitution, a person designated under subsection (1) must be, by reason of training, experience and personality, a suitable person to deal with matters of family law.

(3) The designation of a judge under this section does not preclude the judge exercising other powers and jurisdiction of the High Court.

(4) The appointment of a judge under section 134 of the Constitution is not affected if the judge ceases to be so designated under this section.

Jurisdiction and powers of the Family Division of the High Court

17.-(1) The Family Division of the High Court has jurisdiction in-

(a) matrimonial causes and all other matters instituted or continued under this Act;

(b) any other matter in respect of which jurisdiction is conferred on it by a written law.

(2) Subject to such restrictions and conditions (if any) as are contained in the regulations, the jurisdiction of the Family Division of the High Court may be exercised in relation to persons or things outside the Fiji Islands.

(3) The Family Division of the High Court has exclusive jurisdiction in relation to applications for orders for nullity of marriage and to applications under section 200 in relation to the Convention on the Civil Aspects of International Child Abduction (1980).

(4) Subject to this Act judges of the Division have all such powers as are bylaw or custom granted to the High Court including hearing of appeals from the Family Division of the Magistrates’ Court.

Exercise of jurisdiction

18.-(1) The original and appellate jurisdiction of the Family Division of the High Court is exercisable by one or more judges as the Chief Justice may direct or as prescribed by rules of court.

(2) Sittings of judges of the Division are to be held from time to time as required at such places in the Fiji Islands as the judge of the Family Division directs.

Appeals from the Family Division

19.-(1) An appeal from the Family Division of the Magistrates’ Court lies as of right to the Family Division of the High Court.

(2) Appeals from judges of the Family Division exercising original jurisdiction lie as of right to the Court of Appeal.

(3) Appeals from judges of the Family Division sitting on appeal from orders of the magistrates’ court lie to the Court of Appeal with leave of the Court of Appeal.

(4) This section is in addition to Part IX.

Family Division of the Magistrates’ Court

20.-(1) This section establishes a Family Division of the Magistrates’ Court which is subordinate to the Family Division of the High Court.

(2) The Family Division consists of such resident magistrates as the Chief Magistrate determines.

(3) A person must not be appointed as a magistrate of the Division unless he or she is, by reason of training, experience and personality, a suitable person to deal with matters of family law.

(4) An appointment as a magistrate of the Division does not prevent a magistrate sitting as or executing any other powers of a resident magistrate.

(5) A magistrate of the Division may resign that office without resigning office as resident magistrate.

Jurisdiction and powers of the Family Division of the Magistrates’ Court

21.-(1) The Family Division of the Magistrates’ Court has jurisdiction in-

(a) matrimonial causes and all other matters instituted or continued under this Act;

(b) any other matter in respect of which jurisdiction is conferred on it by a written law.

(2) Subject to this Act all magistrates of the Division have all such powers as are granted by law to resident magistrates and to magistrates’ courts.

(3) Sittings of Magistrates of the Division are to be held from time to time as required at such places in the Fiji Islands as the Chief Magistrate directs.

Practice and procedure

22.-(1) The practice and procedure of each Family Division are governed by the rules of the respective Division.

(2) In so far as the rules of the respective Division are insufficient, the High Court Rules or the Magistrates’ Courts Rules respectively apply (so far as they are capable of such application and subject to any directions of the judge of the Family Division or the Chief Magistrate, as the case may be) to the practice and procedure of the Division.

Officers of the Family Division

23.-(1) The Family Division of the High Court and of the Magistrates’ Court must each have a Director of Counselling and such other court counsellors as are required.

(2) There must be a registrar of each Family Division and such deputy registrars as are necessary.

(3) The Public Service Commission appoints each Director of Counselling and other court counsellors, who must be persons skilled in the social sciences and with a knowledge of court procedures and must be suitable to deal with matters of family law.

(4) The Judicial Service Commission appoints the Registrars, who must be legal practitioners with skills in conciliation.

(5) The Directors of Counselling have such duties as are given to the Directors by this Act, the rules of the Division, the Chief Justice or the Chief Magistrate, as the case may be.

(6) A registrar must, before first performing the functions of a registrar, make before a person authorised under the law of the Fiji Islands to take affidavits an oath or affirmation of office of secrecy in the prescribed form.

PART V – MATRIMONIAL CAUSES

DIVISION 1 – JURISDICTION

Institution of proceedings

24.-(1) Subject to this Part a person may institute a matrimonial cause under this Act-

(a) in the Family Division of the High Court; or

(b) in the Family Division of the Magistrates’ Court.

(2) Proceedings for an order of dissolution of marriage may be instituted under this Act by a party to the marriage if, at the date on which the application for the order is filed in a court, either party to the marriage-

(a) is a Fiji Islands citizen;

(b) is domiciled in the Fiji Islands; or

(c) is ordinarily resident in the Fiji Islands and has been so resident for one year immediately preceding that date.

(3) Proceedings of a kind referred to in any of paragraphs (a) to (e) of the definition of “matrimonial cause” in section 2(1), other than proceedings for an order of dissolution of marriage, may be instituted under this Act if-

(a) either party to the marriage is a citizen of the Fiji Islands;

(b) either party to the marriage is present in the Fiji Islands; or

(c) the proceedings relate to a child of the marriage and the child is present in the Fiji Islands.

Law to be applied

25.-(1) The jurisdiction conferred on a court, or with which a court is invested, by this Act must be exercised in accordance with this Act.

(2) Where it would be in accordance with the common law rules of private international law to apply the laws of any other country or place, the court must apply the laws of that country or place.

Principles to be applied by courts

26. A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to-

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while the family is responsible for the care and education of dependent children;

(c) the need to protect the rights of children and to promote their welfare;

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage;

(e) the Convention on the Rights of the Child (1989) and the Convention on the Elimination of all Forms of Discrimination against Women (1979).

Institution of proceedings

27.-(1) Subject to this section, proceedings under this Act must be instituted by application.

(2) A respondent may, in a response to an application, include an application for any order or declaration under this Act.

(3) Where a final order for dissolution of marriage or of nullity of marriage has been of the definition made, proceedings of a kind referred to in sub-paragraph (c) or (d) of the definition of “matrimonial cause” in section 2(1) (not being proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) cannot be instituted before the expiration of 2 years after the date of the making of the order or the date of commencement of this Act, whichever is the later, except by leave of the court in which the proceedings are to be instituted.

(4) The court must not grant leave under subsection (3) unless it is satisfied that hardship would be caused to a party to a marriage or to a child of the marriage if leave were not granted.

Staying and transferring proceedings

28.-(1) If-

(a) there are pending in a court proceedings which have been instituted under this Act or are being continued in accordance with section 4; and

(b) it appears to that court that other proceedings which have been so instituted or are being so continued in relation to the same marriage or void marriage or to the same matter are pending in another court,

the first-mentioned court may stay the first-mentioned proceedings for such time as it considers appropriate or may dismiss the proceeding.

(2) If-

(a) there are pending in a court proceedings that have been instituted under this act or are being continued in accordance with section 4; and

(b) it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be doubt with in another court having jurisdiction under this Act,

the court may transfer the proceedings to the other court.

(3) The judge of the Family Division may of his or her own motion or on the application of a party at anytime order that any proceedings be transferred from the Family Division of the High Court to the Family Division of the Magistrates’ Court or from the Magistrates’ Court to the Family Division of the High Court.

(4) No appeal lies from an order of the judge made under subsection (3).

Courts to act in aid of each other

29. Courts having jurisdiction under this Act must severally act in aid of auxiliary to each other in all matters under this Act.

DIVISION 2 – DISSOLUTION AND NULLITY OF MARRIAGE

Ground for dissolution

30.-(1) An application under this Act by a party to a marriage for an order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by an application, the ground will be held to have been established, and an order for dissolution of the marriage must be made, if, and only if, the court is satisfied that the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

(3) An order for dissolution of marriage will not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Effect of resumption of co-habitation

31.-(1) For the purposes of proceedings for dissolution of marriage, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be treated as if they were one continuous period, but the period of cohabitation will not be deemed to be part of the period of living separately and apart.

(2) For the purposes of subsection (1), a period of cohabitation is deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

Nullity of marriage

32.-(1) An application under this Act for an order of nullity of marriage must be based on the ground that the marriage is void.

(2) A marriage that takes place after the commencement of this Act is void if-

(a) either of the parties is, at the time of the marriage, lawfully married to some other person;

(b) the parties are within a prohibited relationship;

(c) the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;

(d) the consent thereto of either of the parties is not a real consent because-

(i) it was obtained by duress or fraud;

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) either of the parties is not of marriageable age,

and not otherwise.

(3) Marriages that are within a prohibited relationship are marriages-

(a) between a person and an ancestor or descendant of the person; or

(b) between a brother and a sister (whether of the whole blood or the half-blood).

(4) Any relationship specified in subsection (3) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is deemed to be or to have been the natural relationship of child and parent.

(5) Nothing in subsection (4) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.

(6) For the purposes of this section-

(a) a person who has at any time been adopted by another person is deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

(b) a person who has been adopted on more than one occasion is deemed to be the adopted child of each person by whom he or she has been adopted.

Court not to make order of dissolution where application for order of nullity before it

33. If both an application for an order of nullity of a marriage and an application for an order of dissolution of that marriage are before a court, the court must not make an order of dissolution of the marriage unless it has dismissed the application for an order of nullity of the marriage.

Conditional order in the first instance

34. An order for dissolution of marriage under this Act must, in the first instance, be a conditional order.

When conditional order becomes final

35.-(1) Subject to this section, a conditional order made under this Act becomes final by virtue of this section at the end of one month after the making of the order or on the making of an order under section 36, whichever is the later.

(2) If a conditional order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection-

(a) having regard to the possibility of an appeal or further appeal – make an order extending the period at the expiration of which the conditional order will become final; or

(b) if it is satisfied that there are special circumstances that justify its so doing-make an order reducing the period at the expiration of which the conditional order will become final.

(3) If an appeal is instituted (whether or not it is the first appeal) before a conditional order has become final, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal, but subject to any such order made after the institution of the appeal, the conditional order, unless reversed or rescinded, becomes final by virtue of this section-

(a) at the end of a period of 1 month after the day on which the appeal is determined or discontinued; or

(b) on the day on which the order would have become final under subsection (1) if no appeal had been instituted.

(4) A condition order does not become final by virtue of this section if either of the parties to the marriage has died.

(5) In this section, “appeal”, in relation to a conditional order means-

(a) an appeal or application for leave to appeal against, or an invitation or application for a re-hearing relating to-

(i) the conditional order; or

(ii) an order under section 36 in relation to the proceedings in which the conditional order was made; or

(b) an application under section 38 for rescission of the order or an appeal or application for leave to appeal arising out of such an application.

(6) For the purposes of this section, if an application for leave to appeal, or for a re-hearing, is granted, the application is deemed not to have been determined or discontinued so long as-

(a) the leave granted remains capable of being exercised; or

(b) an appeal or re-hearing instituted in pursuance of the leave is pending.

Final order where children of the marriage

36.-(1) A conditional order of dissolution of marriage does not become final unless the court has, by order, declared that it is satisfied-

(a) that there are no children of the marriage who have not attained 18 years of age; or

(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that-

(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

(ii) there are circumstances by reason of which the conditional order should become final even though the court is not satisfied that such arrangements have been made.

(2) Where, in proceedings for an order of dissolution of marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family and child counsellor or welfare officer regarding those arrangements.

(3) For the purposes of this section, a child (including an ex-nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

(4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the conditional order of dissolution of marriage was made.

Certificate as to final order

37.-(1) If a conditional order becomes final, the Registrar must prepare and file a memorandum of the fact and of the date upon which the order became final.

(2) If a conditional order has become final, any person is entitled, on application to the Registrar, to receive a certificate signed by the Registrar that the conditional order has become final.

(3) A certificate given under subsection (2) is, in all courts and for all purpose evidence of the matters specified in the certificate.

(4) The regulations must provide for the establishment of central records of order for dissolution of marriage or nullity of marriage made under this Act and for this notification of such orders to the Registrar-General.

Rescission of conditional order

38.-(1) If a conditional order has been made in proceedings for dissolution of marriage, the court may, at any time before the order becomes absolute, upon the application of either party to the marriage, rescind the order on the ground that the parties have become reconciled.

(2) If a conditional order has been made but has not become final, the court by which the order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstances rescind the order and, if it thinks fit, order that the proceedings be re-heard.

Re-marriage after dissolution

39. When an order for dissolution of marriage under this Act has become final party to the marriage may marry again.

No limit as to time or place of facts and circumstances

40. An order may be made or refused under this Part by reason of facts and circumstances which took place before the commencement of this Act or outside the Fiji Islands.